General NJ Family Law News & Updates – NJ Family Legal Bloghttps://njfamilylaw.foxrothschild.com
Pertinent Information As It Relates To New Jersey Family LawsThu, 24 Jan 2019 16:20:31 +0000en-UShourly1https://wordpress.org/?v=4.9.9https://njfamilylegalblog.foxrothschildblogs.com/wp-content/uploads/sites/10/2016/08/cropped-cropped-favicon-32x32.pngGeneral NJ Family Law News & Updates – NJ Family Legal Bloghttps://njfamilylaw.foxrothschild.com
3232New Guidance on the Distribution of Deferred Compensation That Vests Post-Complainthttps://njfamilylaw.foxrothschild.com/2019/01/articles/general-new-jersey-family-law-news-updates/new-guidance-on-the-distribution-of-deferred-compensation-that-vests-post-complaint/
https://njfamilylaw.foxrothschild.com/2019/01/articles/general-new-jersey-family-law-news-updates/new-guidance-on-the-distribution-of-deferred-compensation-that-vests-post-complaint/#respondWed, 16 Jan 2019 18:43:30 +0000https://njfamilylaw.foxrothschild.com/?p=7687The issue of the division of deferred compensation in divorce – more particularly, unvested deferred compensation, is often one that is hotly disputed. This is in part because there is not a lot of case law on the issue. The case law is clear that deferred compensation (eg. stock options, restricted stock, RSUs, REUs, etc.) granted during the marriage, or even shortly after the date of complaint but for efforts that occurred during the marriage are subject to equitable distribution. The fights arose regarding whether (1) the deferred compensation should be treated as either income and/or an asset; and (2) if an asset, should they be divided 50-50 or in some other percentage. In fact, I blogged about this in a piece entitled Deferred Compensation – Income, Asset or Both, back in 2013. at the time, I said:

If the deferred compensation is not vested and requires continued, post-divorce Complaint service in order for vesting to occur, that is where things get more difficult. I have seen some simplistically argued that anything granted before the Complaint gets equally divided no matter when it vests. More recently, I have seen a greater use of some type of calculation (coverture fraction) used to recognize the post-complaint service of that spouse. Many believe this to be the fairer way of equitably dividing deferred compensation.

There hasn’t been much case law on this issue since that time, though a case that I will discuss later, suggests that the language of the documents granting the deferred compensation is key, That said, late in 2018, we got some more guidance from the Appellate Division. Specifically, in the reported (precedential) opinion in the case of M.G. v. S.M. decided on December 26, 2018, Judge Mawla gave new guidance with regard to the distribution of deferred compensation, again pointing to the importance of the plan documents.

In M.G., the plaintiff worked as a principal consultant for a large multi-national corporation. Beginning in August 2003, and every August thereafter until 2010, plaintiff received a stock award from his employer. Plaintiff received 490 shares in 2003 and those years began to vest at a rate of 174 shares per year commencing in 2011. A similar vesting schedule was applied to the other grants. Note that in my experience, this is an unusual vesting schedule. That is, it is unusual, in my experience, for their to be a 7 year gap before deferred compensation vests. Typically, I have seen deferred compensation serially vest, over three or five years, starting with the year following the grant. What that means is that if 600 shares of restricted stock were granted in 2018, then they would vest 200 shares each in 2019, 2020 and 2021. Other times, you see shares cliff vest in 3 or 5 years. What that means is that if 600 shares were granted in 2018 that vest in 3 years, all 600 shares would vest in 2021. This is important because the argument you most often heard from the titled spouse is that the because the shares will vest post divorce allegedly based upon post divorce efforts, that they should be distributed in a less than 50-50 percentage.

Back to M.G. At the date of complaint, only 3 of 8 awards were fully vested. At trial, plaintiff offered into evidence plan documents that stated:

Stock-based compensation is a key component of our reward program . . . because it provides an ownership stake in the company’s success for employees who contribute over the long term. To preserve this core element of our culture, in July 2003, [we] decided to grant employees stock awards, which represent the future right to receive shares of . . . stock when a vesting requirement is satisfied.

. . . .

At [our company] we believe that employees who become shareholders maintain a long-term, vested interest in sustained individual excellence and the overall success of the company.

. . . .

Each eligible employee’s annual stock award grant is based on his or her impact, level, and country.

In my experience, the plan language for most plans is much more generic than this. However, in this case, the plan language supported the husband’s position that his continued employment was required for him to receive the value of the options. Judge Mawla noted:

Plaintiff’s unrefuted testimony was clear that post-complaint efforts were necessary to cause the stock, which had not vested as of the date of complaint, to become payable. The plan documents and literature adduced in evidence at trial, and attached to plaintiff’s post-judgment motion, stated vesting would occur dependent upon plaintiff’s post-complaint performance. We reject defendant’s argument that “performance” in this case required plaintiff merely to continue living and go to work. Nothing in the record supports this assertion. Indeed, all of the objective evidence in the record demonstrates much more was required of plaintiff as a high-level corporate employee in a highly competitive industry.

As we noted, plaintiff’s employer described the stock plan as a “reward program . . . because it provides an ownership stake in the company’s success for employees who contribute over the long term.” Company literature explained the stock grants were to “maintain a long-term, vested interest in sustained individual excellence and the overall success of the company.” This language does not suggest the stock would vest through mere continued employment without consideration of plaintiff’s level of proficiency. Nor does this language suggest the stock awards were for work already performed.

As a result, Judge Mawla held that the trial judge misapplied his discretion because in the absence of any evidence or testimony to the contrary, he concluded the stock was earned for work performed during the marriage. Judge Mawla rejected both the use of a coverture fraction or applying the concept of “marital momentum” to address the equitable distribution of the unvested stock awards noting, “In instances where an asset has been granted after the date of complaint, these principles are of little help because they presume a marital component attributable to the asset in question.” (emphasis added).

In determining how to divide such assets, Judge Mawla modified a mechanism found in a case out of Massachusetts. Specifically, the court adopted the following rubric:

(1) Where a stock award has been made during the marriage and vests prior to the date of complaint it is subject to equitable distribution;

(2) Where an award is made during the marriage for work performed during the marriage, but becomes vested after the date of complaint, it too is subject to equitable distribution; and

(3) Where the award is made during the marriage, but vests following the date of complaint, there is a rebuttable presumption the award is subject to equitable distribution unless there is a material dispute of fact regarding whether the stock, either in whole or in part, is for future performance. The party seeking to exclude such assets from equitable distribution on such grounds bears the burden to prove the stock award was made for services performed outside of the marriage. That party must adduce objective evidence to prove the employer intended the stock to vest for future services and not as a form of deferred compensation attributable to the award date. Such objective evidence should include, but is not limited to, the following: testimony from the employed spouse; testimony of the employer’s representative; the stock plan; any employer correspondence to the employed spouse regarding the award; and the employed spouse’s stock plan statements from commencement of the award and nearest the date of complaint, along with the vesting schedule.

In this case, the court noted that the unvested stock was either in whole or in part unattributed to the marriage based upon the plan documents and testimony at trial.

But before people go too wild about this decision, and simply say that all non-vested deferred compensation is the property of the titled spouse, they should really go back to square one and look at the grant documents, because many, if not most, are not like those in M.G. In fact, in an reported case last year entitled K.C. v. D.C., a review of the plan documents lead to an entirely different result.

Rejecting the husband’s argument about his post-complaint efforts being necessary to receive the deferred compensation, the court held that the RSUs awarded were “subject to equitable distribution and shall be equally divided,” observing defendant provided no evidence to support his theory that the award was for future performance. Like in M.G., the generic purpose of the plan was:

to aid the Company . . . in recruiting, retaining and rewarding key employees . . . of outstanding ability and to motivate such employees . . . to exert their best efforts . . . by providing incentives through the granting of Awards. The Company expects that it will benefit from the added interest which such key employees . . . will have in the welfare of the Company as a result of their proprietary interest in the Company.

Different from M.G., however, is the fact that the employee would still get the deferred compensation if they died, became disabled, or were terminated through no fault of their own. Put another way, no post-complaint efforts were specifically required. Accordingly, the Court held:

Aside from the generalized aspiration that “key employees” who are granted RSUs will have an enhanced interest in the welfare of Accenture, there is no requirement that the employee meet any performance goals before a batch of RSUs will vest pursuant to the schedule. The only condition for vesting is “continued employment.” Moreover, in the event the employee is no longer employed due to death or disability, all of the RSUs granted, whether vested or not, are transferred to the employee or his estate. Obviously, the transfer of RSUs following death or disability would not be based on future performance.

In sum, all the documentary evidence in the record1 states that such promotional grants are awarded based on performance ratings at the time of the award, in recognition of employees’ efforts, and no document provided to the court states defendant must meet any given performance goal to trigger the vesting of RSUs that are part of the grant. Contrary to defendant’s argument, the record was clear, and fully supported the trial court’s determination that the RSUs were subject to equitable distribution.

So what is the takeaway here. You need more than just a party’s self serving testimony. You need the plan documents and the documents seemingly must really require post-divorce exemplary efforts more than just staying employed, in order to exempt the deferred compensation granted but not vested during the marriage. M.G. does not address the necessary corollary which would be that if the deferred compensation is exempted from equitable distribution, should it not then be considered as income available to pay alimony when it vests? Seems so but we shall see.

Eric Solotoff is the editor of the New Jersey Family Legal Blog and the Co-Chair of the Family Law Practice Group of Fox Rothschild LLP. Certified by the Supreme Court of New Jersey as a Matrimonial Lawyer and a Fellow of the American Academy of Matrimonial Attorneys, Eric is resident in Fox Rothschild’s Morristown, New Jersey office though he practices throughout New Jersey. You can reach Eric at (973) 994-7501, or esolotoff@foxrothschild.com.

]]>https://njfamilylaw.foxrothschild.com/2019/01/articles/general-new-jersey-family-law-news-updates/new-guidance-on-the-distribution-of-deferred-compensation-that-vests-post-complaint/feed/0Adult Child Actions to Establish Paternity – Knowing Who You Arehttps://njfamilylaw.foxrothschild.com/2019/01/articles/paternity/adult-child-actions-to-establish-paternity-knowing-who-you-are/
https://njfamilylaw.foxrothschild.com/2019/01/articles/paternity/adult-child-actions-to-establish-paternity-knowing-who-you-are/#respondWed, 16 Jan 2019 03:09:47 +0000https://njfamilylaw.foxrothschild.com/?p=7684Today was a good day. For me and for my client. It fills me with hope that tomorrow will also be a good day. Why you ask? After 36 years of wondering, guessing, dreaming, frustrating, I brought my client one step closer to knowing, for certain, who she is.

You see, this client found me about 3 months ago. After speaking to several attorneys, all of whom told her she had no case because of her age, she found me. We had a lengthy phone call where she shared her life story with me. What brought her to the point of seeking legal recourse was simple – she was facing a variety of medical issues, the causes of and exact diagnosis difficult to know without having a full medical history, including that of her natural birth parents. And here her problem lied.

My client, a 36 year old woman residing outside the state of New Jersey had no way to provide that information to her doctors. Her mother was deceased. And she had no confirmation of exactly who her biological father was. She did have a solid suspicion based on information and stories she was told growing up, but her birth certificate was devoid of this.

We talked about her medical challenges in great detail. We mulled over the options. Ultimately, we decided to file a Complaint to Establish Paternity, despite the fact that we were 13 years pass the statute of limitations (technically) to bring such a claim. But as with many areas of the law, there is gray and our facts fit squarely into the gray.

To give some perspective, the New Jersey Parentage Act, N.J.S.A. 9:17-38 et seq., provides the legislative mechanism by which parties may seek to establish paternity for a child in the state of New Jersey. The Act establishes a twenty-three (23) year statute of limitations on bringing actions to establish parentage thereunder, as no action shall be brought more than five (5) years after the child reaches the age of majority, which is eighteen (18) years of age. The Act permits the child to bring the action on his or her own behalf. In reality, any interested party has until the child reaches the age of twenty-three (23) to bring the action.

However, in certain circumstances, the twenty-three year statute of limitations may be equitably tolled. The seminal case on this issue is the New Jersey Supreme Court opinion in R.A.C. v. P.J.S., Jr., 192 N.J. 81 (2007). In that case, the child’s mother’s husband (who believed he was the child’s father) brought a reimbursement action against the alleged biological father. The action was brought past the statute of limitations, when the child was over thirty (30) years old. The trial court in R.A.C. decided that the “[s]tatute of Limitations should not frustrate [the son’s] right to know his own potential genetic make-up,” particularly in light of the “serious medical condition” he may have inherited from his biological father. The appellate court affirmed, finding that the “application of the doctrine of equitable tolling in this case [did] not undermine the purposes of the Parentage Act” because allowing the claim to proceed would not “disrupt fragile familial relationships,” thus “leav[ing] a young child bereft of required paternal guidance,” but rather lead to “a reconciliation of obligations.” The appellate court went on to note that although statutes of limitations generally protect a party from having to defend against stale claims, when that party induces or tricks a putative plaintiff into letting the deadline pass, equitable tolling may apply. In R.A.C., the appellate court determined that the mother and biological father engaged in a pattern of deception, concealing from plaintiff his son’s true parentage and did not time-bar the claim.

The New Jersey Supreme Court reversed this decision, finding that the plain language of the Parentage Act and the legislative intent barred such actions beyond the twenty-three (23) year time limit. The Supreme Court noted that the tendency in New Jersey has been to reject the discovery rule for statutes of limitations that run from a fixed, specified event. The Court found that: “the question here is whether equitable tolling can ever apply to a repose statute…we believe that it can. However, in light of the purpose of a repose statute, which is to set a fixed end to the limitations period regardless of when the cause of action accrues, we expect that equitable tolling will arise only in extraordinary circumstances consistent with legislative intent.” (emphasis added).

Noting the scant legislative history, the Court found that:

The twenty-three-year timeframe for filing a paternity action coincides with the recognized period when a child is in need of financial support and a parent legally bears a financial obligation to provide that support. SeeWingate, supra, 149 N.J. at 239, 693 A.2d 457. In most cases, a parent will no longer be bound to support a child who reaches the age of majority. Newburgh v. Arrigo, 88 N.J. 529, 543, 443 A.2d 1031 (1982). Therefore, the “major concern” of the Parentage Act, the financial support of children, is no longer an issue after children have reached the age of twenty-three and presumably are capable of supporting themselves….By setting a fixed time period, the Legislature evidently understood that there would be cases, perhaps many cases, in which paternity would not be established within the twenty-three-year timeframe and that a biological father who bore the responsibility of raising and supporting a child would be relieved of his obligation. The Legislature did not create a scheme providing for an indefinite liability period, but instead created one that allowed persons to reasonably expect that the slate would one day be “wiped clean.” The Legislature evidently knew what has been known since time immemorial that children would be born of adulterous relationships and that the true identity of the father might not be known for more than twenty-three years. The repose statute does not contain any carve out for such situations.

I must point out that the Court was addressing an action for support (or more specifically, reimbursement for support). The prayers for relief in R.A.C. were financial in nature. In a footnote, the Court stated that:

In light of the muscular dystrophy gene that afflicted Patrick’s family, we do not doubt that Darren’s need to know his biological background for health and family planning purposes might have been an “extraordinary” circumstance warranting the tolling of the statute to allow for DNA testing to establish paternity. SeegenerallyFazilat, supra, 180 N.J. at 88, 848 A.2d 761 (commenting that “confirmation of one’s lineage may also provide `medical benefits’ by allowing the child to learn of the potential diseases and abnormalities he or she may inherit from parents and their forbears”). In this case, Darren was not a named plaintiff, and therefore this lawsuit is not about Darren’s right to know his genetic make-up. Id. (emphasis added).

This footnote became highly relevant to my client’s argument and helped to establish the “extraordinary circumstances” we believed the court intended.

She will now, by virtue of court Order get paternity and genetic testing. If the information she was provided her entire life regarding the identity of her biological father was correct, she will have confirmation and peace of mind. Even now she feels legitimized and well on her way to finding the missing piece of her puzzle. After all, should we not all have that?

I love the practice of law. My specialty area gives me opportunities to impact people’s lives in a way that other attorneys may never experience in their career. Today some lost idealism was returned to me and for that, it was a good day.

]]>https://njfamilylaw.foxrothschild.com/2019/01/articles/paternity/adult-child-actions-to-establish-paternity-knowing-who-you-are/feed/0Terms Reached in Mediation Are Not Enforceable Without a Signed Agreementhttps://njfamilylaw.foxrothschild.com/2019/01/articles/general-new-jersey-family-law-news-updates/terms-reached-in-mediation-are-not-enforceable-without-a-signed-agreement/
https://njfamilylaw.foxrothschild.com/2019/01/articles/general-new-jersey-family-law-news-updates/terms-reached-in-mediation-are-not-enforceable-without-a-signed-agreement/#respondWed, 09 Jan 2019 18:07:31 +0000https://njfamilylaw.foxrothschild.com/?p=7586

In the recent unpublished (non-precedential) decision of Mathurin v. Matrhurin, the Appellate Division again confirmed that (1) agreements reached in mediation are not binding unless the terms are reduced to a writing signed by the parties and, ostensibly, their attorneys if present, and (2) absent such a writing, the court cannot consider discussions, unsigned agreements or memoranda from mediation or other settlement negotiations because such writings/discussions are confidential by virtue of the Rules of Evidence that provide privilege to settlement negotiations. It therefore follows that such confidential writings and/or oral communications cannot be relied upon to convince a court that an agreement was reached in mediation.

The post-divorce litigation in Mathurin arose when Plaintiff/ex-husband filed a motion to enforce the Marital Settlement Agreement (“MSA”) in order to compel Defendant/ex-wife to accept the offer for sale of the marital residence. The parties agreed to sell the home within the MSA, but after they received this offer, Defendant proposed to buyout Plaintiff’s interest in the home for the same amount. Plaintiff did not accept this alternative resolution. Two other enforcement applications followed – one dismissed for procedural issues and the other denied without prejudice (meaning it can be refiled) pending the parties attending mediation because the MSA had a mediation clause that requires the parties to seek such intervention before filing an application with the Court. The mediation session that followed gave rise to this appeal.

The mediator prepared and signed a Memorandum of Understanding (MOU) listing the terms reached in mediation and further stating the parties’ agreement that the MOU reflects an enforceable settlement reached between the parties. Plaintiff reneged on the terms in the MOU because of credits sought by Defendant that he found objectionable, and he refused to sign a formal agreement that his attorney prepared incorporating the terms of the MOU. Plaintiff fired his attorney and filed another motion to enforce the MSA. Defendant filed a cross application to enforce the MOU to which she attached the MOU and signed certifications from herself and both parties’ counsel wherein those parties disclosed the contents of mediation. Ultimately, the trial court found that it cannot consider the MOU and/or the certifications because they are confidential settlement documents, and that the MOU was not binding. The Appellate Division affirmed, finding that the MOU and certifications represent confidential settlement material and that the MOU is not binding because it was not signed by the parties or counsel.

The Appellate Division cited to a New Jersey Supreme Court case, Willingboro Mall, Ltd. v. 240/242 Franklin Ave., LLC, 215 N.J. 242, 245 (2013), confirming that the all agreements reached in mediation must be reduced to a signed written agreement and that mediation discussions cannot be relied upon to prove an agreement was reached unless the parties waive the mediation privilege. The Appellate Division differentiated this case from a 2017 decision, GMAC Mortg., LLC v. Willoughby, 230 N.J. 172 (2017), because in that case the writing was signed by the parties’ attorneys. Although those cases are not family law matters, the same principals apply to all settlement discussions.

This issue here is one that attorneys and litigants face in mediation all to often – was an agreement reached just because there seemed to have been a meeting of the minds? The simple answer is no. Although we do not suggest, nor would we propose, rushing into signing an agreement, if a party in mediation wishes to make sure that the agreement reached in the session is binding, then the terms must be in writing and signed by both parties, as well as counsel if present. This does not have to be formal – a piece of paper with handwritten terms will suffice – but there is no question that written terms and signatures are required. At minimum, terms can be memorialized in an MOU but as we all now know, the MOU is not binding. What may result then is a Harrington hearing, which you can read about in this post: https://njfamilylaw.foxrothschild.com/2014/03/articles/mediation-arbitration/harrington-is-still-alive/

Oftentimes in mediation, the mediator explains at the outset that nothing reached in their session will represent a final agreement unless the terms are reduced to writing and signed by those present (i.e.: parties/parties and counsel). This is a common instruction, presumably in an effort to avoid a future Harrington situation, and one that I find beneficial so that everyone in the room is starting out on the same proverbial page.

]]>https://njfamilylaw.foxrothschild.com/2019/01/articles/general-new-jersey-family-law-news-updates/terms-reached-in-mediation-are-not-enforceable-without-a-signed-agreement/feed/0New Published (Precedential) New Jersey Appellate Division Decision Confirms that all Custody and Parenting Time Decisions Are Created Equalhttps://njfamilylaw.foxrothschild.com/2019/01/articles/custody/new-published-precedential-new-jersey-appellate-division-decision-confirms-that-all-custody-and-parenting-time-decisions-are-created-equal/
https://njfamilylaw.foxrothschild.com/2019/01/articles/custody/new-published-precedential-new-jersey-appellate-division-decision-confirms-that-all-custody-and-parenting-time-decisions-are-created-equal/#respondMon, 07 Jan 2019 14:08:14 +0000https://njfamilylaw.foxrothschild.com/?p=7499In a new, published (precedential) decision, J.G. v. J.H., Judge Koblitz, of the Appellate Division confirmed and explicitly held what we all should have known before: No matter what type of case, the same rules apply with respect to discovery and investigation, and the trial court judge is under the same obligation to apply the legal standard resulting in a decision that is in the best interests of the child.

FD Docket versus FM Docket

It sounds obvious: the welfare of all children should be determined using the same standards and practices. Child custody and parenting time determinations are made under either one of two case or “docket” types. The FM docket type refers to divorce cases; obviously, oftentimes a child custody decision is made incident to a divorce.

When a child custody or parenting time issue arises between unmarried parents (or, more uncommonly, married parents who have not yet filed for divorce), these are handled under the FD or “Non-Dissolution” (i.e. a marriage is not being “dissolved”) docket. These types of cases are known as “summary proceedings,” meaning that they are to be handled much more quickly than divorce cases. While divorce cases are automatically assigned timeframes for exchanging information and appointing experts if needed, this is not automatically done in FD cases and if you want discovery or experts, you have to request it.

As a result, in practice, many judges are tasked with and face the pressure to move FD cases along quickly. Unfortunately, in the J.G. v. J.H. case, and perhaps in many others like it, this led to a very important decision about a child’s custody and welfare being made quickly without taking the proper steps to investigate the best interests of the child that would have occurred in due course in a divorce case. In this important decision, the Appellate Division reminds us that bona fide disputes in child custody cases must not be treated differently just because they may arise in different case types.

The Facts of J.H. v. J.G.

In J.H. v. J.G., although there was no court order establishing same, the parties essentially shared joint legal custody of the minor child, with the mother designated the parent of primary residence and the father the parent of alternate residence with liberal parenting time. When the mother began dating someone else, the father alleged that this new romantic partner posted a threat to the safety of the child, and came to court requesting sole custody. The Court temporarily awarded the father sole custody. When the mother challenged this, the Court entered a permanent change in the parenting schedule, making the father the parent of primary residence and significantly reducing the mother’s parenting time. The judge made each of these decisions without investigation, and gave the parties no opportunity to resolve their differences amicably. The judge did not allow for discovery (even though the mother’s attorney requested it), did not allow the mother’s attorney to meaningfully participate in the proceedings; nor did the judge conduct a hearing despite the the fact that the parties’ claims were completely contradictory.

Requirements for ALL Custody Disputes

Thus, the Appellate Division affirmed that the following requirements must be adhered to in ALL custody disputes, no matter the docket type:

Pre-Hearing Requirements

Pursuant to Rules 1:40-5 and 5:8-1, parties must attend Custody and Parenting Time Mediation prior to a trial.

If parties are unable to resolve the issues in mediation, they must submit a Custody and Parenting Time Plan to the Court, pursuant to Rule 5:8-5(a) and the case Luedtke v. Shobert (Luedtke), 342 N.J. Super. 202, 218 (App. Div. 2001).

Where there is “conflicting information regarding which parent can serve the long term best interest of the child,” but there is no issue as to the psychological fitness of either parent, the Luedtke case requires that a Social Investigation Report should be completed.

In FD cases, if a party requests that the matter be placed on the “complex” case management track, the court can in its discretion grant this request under Major v. Maguire, 224 N.J. 1, 24 (2016), a case on which I have written in the past. Absent a clear reason to deny such a request, it should be granted.

Pursuant to Rule 5:8-1, an investigative report should have been prepared by court staff before any custody determination is made.

Required Plenary Hearing

In all contested custody matters, a thorough plenary hearing is required where parents make materially conflicting representations of fact, pursuant to K.A.F. v. D.L.M., 437 N.J. Super. 123, 137-38 (App. Div. 2014) and many other cases. The plenary hearing must afford both parties the opportunity to present witnesses and to cross-examine the other party’s witnesses, and parties and counsel must have a meaningful opportunity to participate.

Requisite Fact-Findings and Reasons for Award

Judges must explicitly make findings of fact and apply those facts to the custody factors set forth in N.J.S.A. 9:2-4(c), which are:

the parents’ ability to agree, communicate and cooperate in matters relating to the child;

the parents’ willingness to accept custody and any history of unwillingness to allow parenting time not based on substantiated abuse;

the interaction and relationship of the child with its parents and siblings;

the history of domestic violence, if any;

the safety of the child and the safety of either parent from physical abuse by the other parent;

the preference of the child when of sufficient age and capacity to reason so as to form an intelligent decision;

the needs of the child;

the stability of the home environment offered;

the quality and continuity of the child’s education;

the fitness of the parents;

the geographical proximity of the parents’ homes;

the extent and quality of the time spent with the child prior to or subsequent to the separation;

the parents’ employment responsibilities;

the age and number of the children; and

a parent shall not be deemed unfit unless the parents’ conduct has a substantial adverse effect on the child.

Without specifically addressing each and every one of the above factors after listening to the facts presented by both parties and assessing credibility, a court cannot make a determination as to what is in the child’s best interests.

Of course, ALL children and parents deserve this type of extensive inquiry into their welfare and the parent-child relationship – but thankfully this case makes it official and provides additional precedent for overruling or remanding trial court decisions made in haste, without the requisite inquiry.

]]>https://njfamilylaw.foxrothschild.com/2019/01/articles/custody/new-published-precedential-new-jersey-appellate-division-decision-confirms-that-all-custody-and-parenting-time-decisions-are-created-equal/feed/0Due Process for Domestic Violence Defendantshttps://njfamilylaw.foxrothschild.com/2018/12/articles/general-new-jersey-family-law-news-updates/due-process-for-domestic-violence-defendants/
https://njfamilylaw.foxrothschild.com/2018/12/articles/general-new-jersey-family-law-news-updates/due-process-for-domestic-violence-defendants/#commentsTue, 04 Dec 2018 20:48:16 +0000https://njfamilylaw.foxrothschild.com/?p=7479A new domestic violence decision, M.D.C. v. J.A.C., not only confirms that defendants in a domestic violence proceeding are entitled to due process, but also goes a step further by asking the Supreme Court’s Family Practice Committee to determine whether the should require judiciary staff and law enforcement to inform and review with defendants the allegations against him/her, as well as what to expect at a Final Restraining Order (“FRO”) hearing. In the manual’s present form, such explanations are only required for the plaintiff. This suggested update confirms that each party is entitled to reciprocal due process and to be informed of their rights to present evidence, testimony and witnesses, as well as to seek adjournments if additional time is needed to prepare his/her case.

In M.D.C., the trial court treated the defendant in a particularly egregious manner during an FRO hearing in which it entered an FRO against the defendant. Although the plaintiff had the opportunity to present her witness, the trial court did not offer the defendant an adjournment when her only witness (her mother) was unavailable on the trial date, nor did the court advise the defendant of his right to seek such adjournment when she explained her witness’ unavailability. Additionally, while the plaintiff was given the time to present her testimony and even “prompted”by the court to testify about prior acts of domestic violence outside of the four corners of the complaint, the trial court repeatedly disrupted the defendant’s cross-examination of the plaintiff and required the defendant to limit her questions to the domestic violence complaint. Ultimately, the defendant ended her cross-examination out of frustration. This is especially material because the FRO was entered in part on credibility determinations that the defendant was precluded from exploring without justification. Finally, although it seems the plaintiff was able to present her case in the manner desired with assistance from the trial court, the trial court precluded the defendant from introducing photographic and video evidence, which the defendant claimed refuted the plaintiff’s testimony, without making any findings on the record to support this preclusion.

The Appellate Division reviewed the long-standing history of a defendant’s due process rights in New Jersey domestic violence cases and, in part, general litigation, including, without limitation, (1) a defendant’s due process are violated when he/she is denied the right to cross-examine, which is the “most effective device known to our trial procedure for seeking the truth”; (2) courts should advise pro se litigants of their right to seek an adjournment to call necessary witnesses and the failure to offer and/or grant the adjournment violates due process; (3) the failure to consider evidence without any reason for doing so is also a due process violation; and, (4) while plaintiffs seeking an FRO may amplify their allegations of prior domestic violence history, they must amend the complaint in order to place defendants on notice of such allegations and afford them an opportunity to prepare a defense.

In light of all due process violations in this case, it should come as no surprise that the defendant here is using his soapbox to enhance the rights for all defendants in due process cases. From a practice standpoint, having interned in the domestic violence courts of Essex County while in law school and then observing such hearings as a law clerk in Union County, and now appearing often in such courts throughout northern New Jersey, it is undeniable that a significant amount of these hearings occur between pro se litigants on one or both sides. If the plaintiffs are the only party who are advised in advance of their rights and how to conduct themselves at an FRO Hearing, a defendant can argue that the plaintiffs are automatically receiving the upper hand at trial. Although the domestic violence defendant is not facing a criminal conviction (at least at the FRO Hearing), the defendant’s rights are severely impacted by having an FRO entered, including having their name on a national registry that can impact future employment, support obligations, custody and parenting time determinations, prohibitions from carrying/owning weapons that were legally procured, which can also impact employment, etc. Criminal defendants are required to be advised of their rights and, perhaps, so too should a domestic violence defendant.

It will be interesting to see if the Manual is in fact updated. Stay tuned… Either way, if you are representing yourself, whether you are the plaintiff or the defendant, make sure to inform the court of any true impediments you may have to begin trial on a date provided, such as calling a witness or procuring evidence, prepare a thorough cross-examination of the other party’s witnesses and insist on your right to explore credibility and all issues raised by that witness on direct, and have your evidence pre-marked and a proffer ready to explain to the court why it should be entered. This does not guarantee success, but it will help with a fair chance.

]]>https://njfamilylaw.foxrothschild.com/2018/12/articles/general-new-jersey-family-law-news-updates/due-process-for-domestic-violence-defendants/feed/1Opposing an Application to Modify or Terminate Alimony Upon Retirement? Be Ready to Address Your Ability to Have Saved Adequately for Retirement.https://njfamilylaw.foxrothschild.com/2018/12/articles/general-new-jersey-family-law-news-updates/opposing-an-application-to-modify-or-terminate-alimony-upon-retirement-be-ready-to-address-your-ability-to-have-saved-adequately-for-retirement/
https://njfamilylaw.foxrothschild.com/2018/12/articles/general-new-jersey-family-law-news-updates/opposing-an-application-to-modify-or-terminate-alimony-upon-retirement-be-ready-to-address-your-ability-to-have-saved-adequately-for-retirement/#respondMon, 03 Dec 2018 20:10:55 +0000https://njfamilylaw.foxrothschild.com/?p=7470In the wake of the September 10, 2014 amendments to N.J.S.A. 2A:34-23, the legislature clarified the circumstances under which an alimony payor’s obligation can be modified or terminated due to the obligor’s intended or actual retirement. Under the statute as amended, when faced with an obligor’s application to modify or terminate alimony due to good faith retirement, the Court must consider the question of the alimony recipient’s ability to save for his or her own retirement. As discussed In the new unpublished (non-precedential) Appellate Division decision Stansbury v. Stansbury, this question is given much greater weight in pre-Amendment cases (i.e. in cases that were decided or agreements that were entered into prior to September 10, 2014).

For post-Amendment cases, there is a rebuttable presumption that if a payor retires at “good faith retirement age” (defined as the age at which (s)he would be entitled to receive full Social Security Retirement benefits), then alimony shall terminate unless the recipient can show by a preponderance of the evidence and for good cause shown that alimony should continue (either in full or in a reduced amount). In making that determination, the court must consider eleven (11) factors, one of which is the ability of the recipient to have saved adequately for retirement. SeeN.J.S.A. 2A:34-23(j)(1). This factor is listed along with the ten other factors, in no order of importance, with no emphasis whatsoever.

But for pre-Amendment alimony awards (like the Stansburys’), the statute does not just list the obligee’s ability to save for retirement as one of many on a list of factors to be balanced and considered. Instead, it absolutely mandates and even elevates this criteria first and foremost among the others:

When a retirement application is filed in cases in which there is an existing final alimony order or enforceable written agreement established prior to the effective date of this act, the obligor’s reaching full retirement age as defined in this section shall be deemed a good faith retirement age. Upon application by the obligor to terminate or modify alimony, both the obligor’s application to the court and the obligee’s response to the application shall be accompanied by current Case Information Statements or other relevant documents as required by the Rules of Court, as well as the Case Information Statements or other documents from the date of entry of the original alimony award and from the date of any subsequent modification. In making its decision, the court shall consider the ability of the obligee to have saved adequately for retirement as well as the following factors in order to determine whether the obligor, by a preponderance of the evidence, has demonstrated that modification or termination of alimony is appropriate:

(a) The age and health of the parties at the time of the application;

(b) The obligor’s field of employment and the generally accepted age of retirement for those in that field;

(c) The age at which the obligor becomes eligible for retirement at the obligor’s place of employment, including mandatory retirement dates or the dates upon which continued employment would no longer increase retirement benefits;

(d) The obligor’s motives in retiring, including any pressures to retire applied by the obligor’s employer or incentive plans offered by the obligor’s employer;

(e) The reasonable expectations of the parties regarding retirement during the marriage or civil union and at the time of the divorce or dissolution;

(f) The ability of the obligor to maintain support payments following retirement, including whether the obligor will continue to be employed part time or work reduced hours;

(g) The obligee’s level of financial independence and the financial impact of the obligor’s retirement upon the obligee; and

In Stansbury, the Defendant had a permanent alimony obligation but, at the age of 72 (well past good faith retirement age), he was looking to retire and made the appropriate application, which the Plaintiff opposed. Eliciting certain facts from the parties’ respective certifications that accompanied their motions (and, reasonably, hoping to avoid the time and expense of a trial for two litigants with modest means and of a senior age), the judge addressed each of the factors listed above, including the question of the Plaintiff’s ability to save for retirement. She found that – based on what the Plaintiff certified about a recent health issue and about her income and budget set forth on her Case Information Statement – it was “unlikely” that the Plaintiff had been able to save for retirement. Based on this assumption and on the remaining factors, the trial judge declined to terminate the Defendant’s obligation and instead reduced it.

The Defendant appealed, arguing that – having failed to conduct a hearing – the trial judge did not have sufficient evidence to make the assumption that the Plaintiff did not have the ability to save for retirement. In fact, on the question of what had happened to the Plaintiff’s share of Defendant’s pension awarded to her in equitable distribution, the trial judge had essentially taken a guess that the Plaintiff had liquidated her share of that marital asset and spent it while she was not working due to her recent illness, or else re-invested it. There was no testimony in the record from the Plaintiff herself as to what she had done with this money. The Appellate Division found that the trial judge’s failure to make findings after a hearing as to the issue of the Plaintiff’s ability to save for retirement was an error, and remanded the matter to the trial court, instructing that:

The hearing should require plaintiff to come forward with evidence that she saved for retirement to the extent she was able to do so, and how plaintiff disposed of her share of defendant’s pension.

The case makes clear that for pre-Amendment alimony awards in particular, trial judges not only have to consider this factor, but must give it great weight. Therefore, litigants opposing retirement applications in pre-Amendment cases should be prepared to address this in great detail. Additionally, the Appellate Division’s instruction to the trial court quoted above in the Stansburycase certainly suggests that whether an obligee has actually saved for retirement is not the important thing that courts must consider in these applications, but rather whether the recipient COULD HAVE saved for retirement based on his/her income, assets inclusive of equitable distribution, and the alimony received. In other words, fiscal irresponsibility on the part of the obligee shouldn’t bar the obligor from making a successful application.

]]>https://njfamilylaw.foxrothschild.com/2018/12/articles/general-new-jersey-family-law-news-updates/opposing-an-application-to-modify-or-terminate-alimony-upon-retirement-be-ready-to-address-your-ability-to-have-saved-adequately-for-retirement/feed/0Don’t Expect Opposing Counsel To Control the Unreasonable Clienthttps://njfamilylaw.foxrothschild.com/2018/11/articles/divorce/dont-expect-opposing-counsel-to-control-the-unreasonable-client/
https://njfamilylaw.foxrothschild.com/2018/11/articles/divorce/dont-expect-opposing-counsel-to-control-the-unreasonable-client/#commentsTue, 20 Nov 2018 19:36:24 +0000https://njfamilylaw.foxrothschild.com/?p=7466We have all seen cases where one of the parties is unreasonable if not out of control. I am not talking about taking a hard of aggressive legal position. I am not talking about taking an aggressive if not unreasonable settlement position – at least to start. I am talking about a client that refuses to abide by an agreement or an Order. I am talking about a client that intentionally misinterprets an agreement or an Order because on this occasion, the clear interpretation does not favor her – only to take the exact opposite interpretation the next time when it would be to her favor. I am talking about someone with oppositional defiance disorder and/or someone who automatically rejects something, even if it is to his or her benefit, simply because it was suggested by the other party or opposing counsel. I am talking about someone who could either tell the truth or lie, with no greater advantage in lying, but lies anyway. I am talking about someone that cannot help to put their kids in the middle to hurt their spouse, knowing that they are probably hurting their kids in the process. There are many other examples I can give based upon my many years as a divorce attorney.

In a perfect world, when this happens, assuming that it is not opposing counsel that is actually causing the problem in the first place, you would hope to be able to tell your client that cooler heads will prevail. Surely you would like to be able to tell your client that opposing counsel will get control of the situation and put the matter back on track, right? Too often, the answer is no. Why is this the case? Sometimes, especially early on, counsel will take their client at face value, without seeking proof or verification. That is to be expected to some degree though a better practice might be to get more information before going off half-cocked. But more often than not, that is not the reason at all. In fact, sadly there are too many practitioners out there willing to do anything that the client wants, without consideration for how it impacts their client in the long run, or their personal reputation. Don’t get me wrong, I am not suggesting that an attorney should not zealously advocate for their client’s position. They have to – that is their ethical obligations. But before furthering the crazy and/or throwing gasoline on the fire, is it not better practice to try and get a situation under control. Does it really make sense to unprofessionally echo a client’s unfounded attacks to deflect a provable, documented factual account of that client’s misbehavior? Does it really make sense to let a client take an action or file a certification that will hurt them in the long run? Though, on the other hand, when a client asks why the other lawyer is doing something in furtherance or defense of the bad behavior or why they haven’t stopped it, I have to remind them that we have no idea what advice the other party was actually given. Sometimes, it is as simple is that as long as the client is paying them, they will do anything that the client says, no matter if it is good for the client or not.

Again, don’t get me wrong. There are bona fide disputes. There are reasons that motions have to be filed. There are reasons that things need to be litigated. But there are things that have no business not being brought under control. When the lawyer absurdly enflames things further and/or defends the indefensible, they become part of the problem instead of being part of the solution. That is unfortunate for the parties, their children and the system. More and more, it seems that there are too many practitioners that are all too willing to give credence to the unreasonable or out of control, as opposed to trying to put a case on the right track towards resolution. That is unfortunate.

_________________________________________________________

Eric Solotoff is the editor of the New Jersey Family Legal Blog and the Co-Chair of the Family Law Practice Group of Fox Rothschild LLP. Certified by the Supreme Court of New Jersey as a Matrimonial Lawyer and a Fellow of the American Academy of Matrimonial Attorneys, Eric is resident in Fox Rothschild’s Morristown, New Jersey office though he practices throughout New Jersey. You can reach Eric at (973) 994-7501, or esolotoff@foxrothschild.com.

Connect with Eric:

]]>https://njfamilylaw.foxrothschild.com/2018/11/articles/divorce/dont-expect-opposing-counsel-to-control-the-unreasonable-client/feed/1Be Prepared For the Stormhttps://njfamilylaw.foxrothschild.com/2018/11/articles/general-new-jersey-family-law-news-updates/be-prepared-for-the-storm/
https://njfamilylaw.foxrothschild.com/2018/11/articles/general-new-jersey-family-law-news-updates/be-prepared-for-the-storm/#respondMon, 19 Nov 2018 15:35:26 +0000https://njfamilylaw.foxrothschild.com/?p=7463There has been a lot of talk about the lack of preparedness for last week’s snow storm that left many people stranded in traffic for hours trying to get home. While many have argued, perhaps rightly, that the storm turned out being much worse the forecast, at the end of the day, as with many other things in life, people focus on the end results. In fact, my bet is that most of the people who were complaining when schools called an early dismissal the night before, when the forecast was for much less snow than actually fell, were the same people complaining about the ultimate outcome.

Divorce is very much the same way. While you may not know exactly when the process may start, few people are really, deep down, surprised that it is actually happening because the warning signs are there, whether it is adultery, lack of intimacy, constant fighting, lack of communication, bad communication, lack of agreement regarding parenting, etc. This reminds me of a story that a client told me many many years ago. He and his wife were in marriage counseling for years and he ultimately decided to tell his wife that he intended on pursuing a divorce during a counseling session. The wife responded with epic histrionics suggesting that she was shocked. The therapist ultimately told her that she could express any number of emotions but surprise wasn’t one of them.

The point again is that divorce is seldom a surprise. Moreover, you don’t really know how bad the storm is going to be until it happens. Most people want an “amicable” divorce but seldom agree on what that actually means at the beginning. Very often, emotion takes over and derails what should be an “easy”, legally speaking, divorce. On the other hand, some matters that appear like they can be very complex resolve easily because one or both of the parties are sufficiently motivated to get a deal done.

And because the ultimate divorce is seldom a surprise, if you think that divorce is possibility, you can do two things. One is to put your head in the sand and then be overwhelmed by the storm when it comes. The other is to prepare for the storm, just in case. What are the things you can do to prepare? Here are some things you can do:

Familiarize yourself with your spouse’s income? How are they paid? Do they receive a base and a bonus? Is the bonus guaranteed? Is there a target bonus? Is there deferred compensation – stock options, restricted stock, RSUs, REUs, and/or any of the other of the alphabet soup of other earned income? Finding out if there what is vested or not, if there is a vesting scheduling, when are these things usually paid, where have they been historically deposited, do they automatically convert to cash or stock when they vest, etc.

Familiarize yourself with your spouse’s benefits and perquisites, including health insurance, other insurances, retirement plans, and the like? Is there are vehicle that the employer or your spouse’s business (if they are a business owner)? And if they are a business owner, is there a business credit card? What things does the business pay for? If there is a business, is their cash?

While you are doing all of the above, start assembling historical financial documents. Five years of tax, income, bank, brokerage, retirement and credit card information is a good start but if there are other seemingly important documents in the house, on computer hard drives or online, secure copies of those, as well. And after you go about doing that, don’t leave the documents lying around the house or in the trunk of your car where your spouse can take them. Make copies and secure them off site.

If you have assets that are premarital, received via a third party gift and/or inherited, it is your burden to prove to a court that those assets are exempt. If you can prove exemption, then they are not divided in equitable distribution typically. It should be of no surprise that when a divorce occurs, these documents disappear, as well. Accordingly, if divorce is a possibility, secure these documents as well.

If there are valuable items that may “disappear”, you may want to secure them – eg. putting jewelry in a safe deposit box. You would not believe how many times a wife’s engagement ring (which is legally exempt in most cases), disappears on the occurrence of a divorce.

If custody and/or parenting time could be an issue, familiarize yourself with your children’s teachers, doctors, friends, etc. both at present and in the past. Think about who may be witnesses regarding your involvement with the children.

Research potential therapists for both yourself and your children. Even if they are not needed at the moment, once the storm comes, they may be a resource that you want to avail yourself of.

Identify a solid support system. I am not suggesting that you tell the world that your marriage may be coming to an end. Rather, identify for yourself the people that you believe you can rely on when the storm comes.

Have a consultation with a divorce lawyer – even if you are not ready to proceed. For one, you will get some education about your rights and responsibilities. Fear of the unknown often paralyzes people. Moreover, based upon your specific facts and circumstances, the above list to help you get prepared in case of the storm may expand.

_________________________________________________________

Eric Solotoff is the editor of the New Jersey Family Legal Blog and the Co-Chair of the Family Law Practice Group of Fox Rothschild LLP. Certified by the Supreme Court of New Jersey as a Matrimonial Lawyer and a Fellow of the American Academy of Matrimonial Attorneys, Eric is resident in Fox Rothschild’s Morristown, New Jersey office though he practices throughout New Jersey. You can reach Eric at (973) 994-7501, or esolotoff@foxrothschild.com.

Connect with Eric:

]]>https://njfamilylaw.foxrothschild.com/2018/11/articles/general-new-jersey-family-law-news-updates/be-prepared-for-the-storm/feed/0Thanksgiving Top 5 Listhttps://njfamilylaw.foxrothschild.com/2018/11/articles/general-new-jersey-family-law-news-updates/thanksgiving-top-5-list/
https://njfamilylaw.foxrothschild.com/2018/11/articles/general-new-jersey-family-law-news-updates/thanksgiving-top-5-list/#respondThu, 15 Nov 2018 13:24:12 +0000https://njfamilylaw.foxrothschild.com/?p=7458 It’s the Thursday before Thanksgiving and you’re getting divorced… tough as it may sound, it’s important to put down your pad and pen, eat some Turkey (tofurkey works, too) and remember what you have to be thankful for. Here’s a Top 5 for a little chuckle:

You will get divorced… For some that day may be soon and for others not soon at all, but whenever the day is, it will come!

For those with children (four-legged count also), regardless of how you feel about your soon to be ex, your relationship gave you the wonderful kids that you may be doing this for! For those without children, be thankful that once you are divorced, your connection to your ex will be minimal, if any!

New traditions (and some may add no more Thanksgivings with your in-laws)!

Prenuptial Agreements (whether this time around or next)…

… And the capable counsel you have guiding you along this journey (who can even make you laugh once in a while)!

In all seriousness, the holidays are a good time to reflect and remember that you can take a step away, take a deep breath and just enjoy your time without focusing on your divorce… even the Courts are closed next week!

]]>https://njfamilylaw.foxrothschild.com/2018/11/articles/general-new-jersey-family-law-news-updates/thanksgiving-top-5-list/feed/0Making a House a Home for Custody Jurisdictionhttps://njfamilylaw.foxrothschild.com/2018/11/articles/general-new-jersey-family-law-news-updates/making-a-house-a-home-for-custody-jurisdiction/
https://njfamilylaw.foxrothschild.com/2018/11/articles/general-new-jersey-family-law-news-updates/making-a-house-a-home-for-custody-jurisdiction/#respondWed, 14 Nov 2018 13:38:47 +0000https://njfamilylaw.foxrothschild.com/?p=7450In our ever-changing society that is becoming more transient as we modernize, it’s important to remember time requirements for a state to establish jurisdiction over a child should you find yourself in need of a custody determination after residing across state lines.

In the reported decision of P.H. v. L.W., the parties met in Chicago while P.H. lived in New York and L.W. lived in South Dakota, had twins born in South Dakota and, eventually after a sorted history, they resided together in New Jersey from July 18, 2015 to January 13, 2016 when L.W. packed all of her and the twins’ belongings and made her way back to South Dakota where she arrived on January 15, 2016. P.H. then returned to New York in early 2016. The facts are explored below but it’s primarily important to look at the takeaways here based on those bare bones.

First, the Appellate Division reversed the trial court’s findings that New Jersey was the “home state” of the parties’ twins because they resided here for five (5) days short of the six (6) month requirement of N.J.S.A. 2A:34-54. The initial orders finding New Jersey as the home state were entered based upon the P.H.’s misrepresentation that the twins begin residing in New Jersey three (3) days earlier than L.W. and the twins actually moved in with him in Dumont (July 15, 2015 as compared to July 18, 2015). That earlier date is when he signed the lease for the Dumont apartment, without L.W. on the lease, as opposed to the day that they actually moved in with him.

Additionally, the Appellate Division further found that the twins’ absence from New Jersey for the few days short of the six (6) month requirement was not “temporary”. If, for example, the twins were on vacation for those days, then the days would have counted toward the required time period. Here, however, their absence was the result of L.W. moving permanently from New Jersey back to South Dakota where she hails from.

Although the trial court’s jurisdiction finding was based solely on the “home state” argument, the Appellate Division did not stop there to hammer home the point that New Jersey lacked jurisdiction. Rather, it explored the alternatives that New Jersey could have used to find jurisdiction of the parties’ twins.

Citing to N.J.S.A. 2A:34-65(a)(2), New Jersey may still have custody over a child who resides here for less than six (6) months if:

No other state has jurisdiction or

A court with home-state jurisdiction declines to exercise it and

the child and at least one parent or person acting as the parent have a significant connection with New Jersey other than mere physical presence and

substantial evidence is available in New Jersey concerning the child’s care, protection, training and personal relationships.

Neither of the above requirements existed in the case at hand, in part due to the time that passed between the father arguing that New Jersey is the home state (and leaving out the above alternatives) and the present appeal. P.H. initially filed his New Jersey custody application on January 28, 2016 when the twins had been outside of the state for about two (2) weeks. The trial court could have found jurisdiction based on the “significant connection” and “substantial evidence”. However, with the passage of time, this totally changed. The Order being revisited was entered in June 2017 denying L.W.’s April 2017 request to dismiss the New Jersey custody orders based on a lack of jurisdiction. At the time it was filed, both parties had resided outside of New Jersey for almost a year and a half. Thus, jurisdiction would not have been warranted by either the significant connection” or “substantial evidence” tests, above.

Taking it a step further to really confirm that New Jersey does not have jurisdiction, citing to N.J.S.A. 2A:34-71, the Appellate Division opined that South Dakota is a more convenient forum as compared to New Jersey. Here, it is important to note that even if the above standards had been met (either the home state, significant connection or substantial evidence tests), New Jersey courts have the authority to decline jurisdiction if:

New Jersey is an inconvenient forum under the circumstances and

Another state is a more appropriate forum.

There is no question that South Dakota was more convenient as L.W. and twins had lived there for about a year and a half when the appeal was filed.

Although the above may seem straight forward, family law cases are extremely fact sensitive and the facts here are nothing short of interesting:

Timeline of Residence in New Jersey

L.W. is from South Dakota and lived there when the parties met in Chicago in 2012.

P.H. resided in New York when the parties met.

L.W. became pregnant and gave birth in South Dakota in June 2013.

P.H. returned to New York City following the birth.

L.W. and the twins lived in South Dakota until 2015 with period visits from P.H. that she claims included domestic violence acts committed against her.

In June 2015, L.W. and the twins went to live with P.H. in New York – both in an RV on a campground and in P.H.’s apartment.

On July 15, 2015, P.H. signed a lease for a house in Dumont.

L.W. and the twins moved into the house on July 18, 2015.

L.W. obtained possession of the home upon entry of a Temporary Restraining Order (“TRO”) in New Jersey on December 14, 2015, which also provided that she have custody of the twins.

P.H. obtained his own TRO against Defendant on January 11, 2016, also filed in New Jersey.

On January 13, 2016, L.W. packed her belongings for a permanent move back to South Dakota, and she provided evidence by way of her mover’s inventory that she took all of her belongings and the move was permanent.

On January 15, 2016, L.W. arrived in South Dakota where she continues to reside with the twins. There was evidence that she was in Chicago on January 14, 2016 and, thus, had started her journey back to South Dakota.

P.H. then returned to New York shortly thereafter.

On January 28, 2016, the New Jersey court dismissed L.W.’s TRO against P.H. when she failed to appear for the final hearing.

Timeline of Custody Determinations in Both South Dakota and New Jersey

On January 28, 2016, the same date of the above TRO dismissal, P.H. filed a complaint seeking determination of paternity and custody. P.H. failed to successfully serve L.W. at the address he sent the motion, namely her father’s home, as L.W. was living at an undisclosed residence because she did not want P.H. to know her whereabouts in light of her alleged domestic violence history. L.W.’s father did not send her this mail until October or November 2016. This unopposed application was the catalyst for New Jersey being declared the twins’ home state. Of course the lack of service was not yet known to the court.

During the time in which P.H. filed his case in New Jersey (without L.W.’s knowledge), L.W. obtained a temporary order of protection in South Dakota on January 27, 2016 and then the final Order on March 8, 2016, which awarded her custody of the twins.

On March 17, 2016, the New Jersey court entered an order requiring L.W. to submit the twins to genetic testing for paternity purposes following the unopposed application.

On September 1, 2016, the New Jersey court ordered L.W. to bring the children to New Jersey, finding that she improperly removed the twins who had resided in New Jersey for six months.

On October 25, 2016, the New Jersey court again found that New Jersey was the twins’ home state because they lived here for six (6) months and ordered a bench warrant for L.W.’s arrest, as well as modified custody to grant P.H. sole legal custody of the twins to have them brought back to New Jersey to address paternity and custody issues.

P.H. used that New Jersey Order as support for his request that South Dakota modify its March 2016 Order granting L.W. custody of the twins. L.W. opposed the application. The judges of each state conferred and then South Dakota vacated the custody portion of the protective Order and ordered that L.W. comply with the New Jersey genetic testing Order, which she did.

On March 31, 2017, the South Dakota Court relinquished its limited jurisdiction to New Jersey.

In April and May 2017, L.W. unsuccessfully challenged the Orders entered in both states as to New Jersey’s jurisdiction – with New Jersey finding that jurisdiction had been decided and the family would be left without a “place to go” because South Dakota relinquished jurisdiction. The trial court never addressed L.W.’s argument that New Jersey is an “inconvenient forum”.

With all that said, try to ensure that your children reside in the state where you want to be heard for at least six (6) months before you file for a custody determination. That can be easier said than done. Whether your timing is a bit off or you meet the six (6) months, do not box yourself into a corner by basing your case on only one argument in your favor – use them all. That holds true for issues well beyond custody jurisdiction. Happy home hunting!